Renouncing executorship and probate – when an executor does not wish to act

Featured

Renouncing probate is what you can do if you are named as executor in a deceased person’s will, and do not want to take on the role.  You are not obliged to, but you need to take steps to put that into effect as soon as practical.

Note, if you are looking for executor services, you can find a lawyer or law firm to do this by contacting the law society in your state/territory for referrals: links here.  Alternatively the public trustee in your state/territory, links here, also provides executor services, as do some non-government providers including banks, even if they were not consulted when the will was made.    

Can an executor resign?
There is no requirement that a named executor in a will  must accept the role of executorship, even if you had agreed with the willmaker that you would.

So in other words, can you resign as executor of an estate? Yes, providing you have not intermeddled in the estate already, see further below on what intermeddling means.

If you don’t wish to act when the time comes, and you have not dealt with estate property, you can give up the right to do so.  It means you give up your appointment as an executor, commonly called renouncing probate. In renouncing probate you are renouncing the executorship, in other words resigning.  It means you renounce or give up your right to apply for probate of the deceased’s will; sometimes expressed as to ‘renounce probate’.

More

Nieces and nephews – leaving them an inheritance

By B Stead

Meaning of “nieces and nephews” – the general assumption

Nieces and nephews in wills, nieces and nephews, whole blood, half blood, ancestors, common ancestorOur nieces and nephews are the children of our brothers and sisters, this hardly needs saying.  If someone wishes to leave a gift to their “nieces and nephews” in their will, it should be a simple matter, when the time comes, to identify which individuals are a niece or a nephew and so entitled to share in the inheritance.   However circumstances and relationship may change from the time a will is made to the date of death.
More

Probate – a grant of probate – what is probate?

Administration of a deceased person’s estate – proving the validity of a will

By B Stead
probateProbate is the official process to establish or prove, whether a deceased person’s will or testamentary document is valid and intended to be their last will.

A grant of probate is the document issued by the Court of Probate after the examination process.  A type of grant of representation, it is an order of the Court certifying that the executor (or personal representative) named in the document is lawfully authorised to administer the estate of the deceased person. More

Court costs when contesting a will for family provision – who pays?

By B Stead

Court costs in contesting a will may run into thousands.

court costs, costs of proceedings, family provision, testator's family maintenance, If you are thinking of making a claim for family provision under a will, despite all efforts to find a solution, including mediation, don’t assume that your costs will be paid out of the estate; at least in New South Wales.  What happens  depends on individual circumstances.

In recent years the New South Wales Supreme Court has made it clear that the expectation that the costs of making a family provision claim will automatically be paid out of the estate, has been “thoroughly discredited.”1

More

Adult children claiming provision from their parent’s estate – some things to consider

By B Stead

family provision, adult children, estrangement, equality, estate claimAdult children who feel they have not been provided for or left out of their parent’s will, may wish to make a claim from their deceased parent’s estate. Children of a deceased parent are eligible under family provision or testator’s family maintenance legislation to apply to the Court for an order for provision out of their deceased parent’s estate.  More

Residue of a deceased estate, the residuary estate – what is it?

What does the ‘residue’ or ‘to give the residue of my estate’ mean?

 

residue, deceased estate, wills, making a will, administration, probate The residue of a deceased person’s estate is what is left over after the payment of all expenses in connection with the estate.

Expenses include payment of the funeral, costs incurred in the administration of the estate, payment of the deceased’s debts, the discharge of any liabilities of the deceased, and the distribution of any specific gifts made under their will.

The residue or residuary estate is property of the deceased not disposed of by the terms of their will.

More

Intestacy rules – who is entitled to inherit?

Featured

Dying without a will (intestate) – who inherits?

Intestacy is when you die without leaving a will.  You are said to have died “intestate”.  In the absence of  instructions left in a valid will, who will inherit your property?  Succession law contains strict rules to deal with this problem.

This is an outline of the application of the intestacy rules. They specify the order of entitlement as to who inherits and in what proportion, as well as the provision of a sum of money (statutory legacy) for the spouse or partner.   More

A family tree can be useful, with or without a will

Why do a family tree?

family tree, wills, inheritance, intestate, intestacy,

A family tree is a record of information about family relationships. It is useful to have a basic outline of close family/next of kin relationships to keep with your personal papers.  This maybe unnecessary you might think.

However a family tree can be helpful in preparing to make a will, especially where large, complex estates, blended families and business succession issues are involved.  More

When disposing property by will check the ownership – what can and can’t be disposed of by will

Disposing property – what can be disposed of by a will and what can’t – property ownership and control issues

disposing property by will, what property can be disposed of by will, Property ownership, will making, company shares, units, trust,Disposing property by will, in the will-making process requires considerations to be given to what you own in your individual name, as opposed to what you might control, see further below.  As only property owned in a personal or individual name can form a deceased estate, it is only this which can be transferred by will, (or the rules of intestacy).

Other property may be owned in the name of a company or trust.  In these entities an individual may have control through shareholdings or a power of appointment.  When it comes to making a will, it is important to remember that such assets won’t form part of a person’s deceased estate and therefore cannot be disposed by their will.  See the table below for examples of what are estate (disposable by will) and non-estate assets. Making a list of property, money and things to be disposed of and who owns what is important. More